Ethics Opinions
Opinions of the Ethics Committee over the years are listed below. They make an excellent starting place to research an ethical question. The Committee also can steer lawyers to ethics opinions from the ABA, other states, and other ethics resources that may be helpful. Most importantly, the Ethics Committee exists to be are source for members of the Bar. Please never hesitate to get in touch with questions or suggestions of how the Committee can best serve you.
Please note: The Ethics Committee is NOT the Disciplinary Board. The Ethics Committee exists not to identify and discipline ethical violations, but to confidentially assist lawyers in achieving compliance with the Rules of Professional Responsibility.
2022 2021 2020 2019 2014 2013 2012 2011 2010 2009 2007 2006 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1988 1987 1986
2022
- 2022-07: (4.2, 4.3, and 4.4)
- If a lawyer is representing a client suing the client’s former entity employer, and an attorney represents the entity, may the lawyer contact another former employee of the entity-employer about the lawsuit without the consent of the entity-employer’s attorney?
- Answer: Yes, with certain caveats, such as the possibility that the other former employee possesses privileged information, is independently represented, or has obtained representation from the entity-employer’s attorney.
- 2022-06: (Rules 1.2(C) and 1.8(a))
- May a lawyer who has and is providing legal services to a client provide non-legal services as the client’s agent for compensation?
- Answer: Yes, but the lawyer must clearly define the scope of the services as separate and distinct from the legal services, as well as the practical implications of the fact the services are not “legal,” including the potential impact on the duty of loyalty, the attorney-client privilege, and how the lawyer’s position as a licensed attorney may further limit what the lawyer may do in this extra-legal role. The lawyer must also comply with the rule applicable to business transactions between lawyers and their clients.
- 2022-04: (Rules 7.4)
- What must a Lawyer do if a newspaper or other reporter misquotes the Lawyer’s statement in a manner that gives the impression the Lawyer claims to have a certain “expertise” or other certification when the Lawyer does not.
- Answer: The Lawyer is not responsible for the media’s misquoting of the Lawyer’s statements about the Lawyer’s practice.
- 2022-03: (Rules 1.7 and 1.10)
- May a law firm employ a non-lawyer to assist parties with resolving
disputes as a “neutral” if the law firm already represents other clients adverse to the non-lawyer’s clients? - Answer: Yes, but the law firm should restrict the non-lawyer’s access to lawyers’ files and vice-versa.
- May a law firm employ a non-lawyer to assist parties with resolving
- 2022-02: Communication and Candor (Rules 1.4 and 3.3)
- Issue Presented: What should a Lawyer do if a third party is interfering with the Lawyer’s communication with the Client and if the Lawyer is not receiving sufficient information to believe the Lawyer is being candid with the Court about the facts?
- Answer: The Lawyer must act to remove the interference. If that cannot be accomplished, Lawyer must withdraw from representation; and the Lawyer should not make knowingly false
statements to the Court.
2021
- 2021-02: (Rules 3.1)
- May a Lawyer file a complaint, petition, or another pleading for relief if the Lawyer believes, after independent evaluation, that the pleading would lack merit?
- Answer: No.
- 2021-01: Constitutional Amendment A, Section 9 inquiry (Rules 1.2(d))
- Issue Presented: Whether Section 9 of Constitutional Amendment A precludes a court or the Disciplinary Board from taking disciplinary action against a lawyer who provides legal services to a marijuana business notwithstanding Rule 1.2(d) of the Rules of Professional Conduct?
- Answer: This question calls upon the Committee to interpret and then apply substantive law which is outside of the Committee’s purview.
2020
- 2020-07: The marijuana opinion (Rule 1.2)
- Issue Presented: May a South Dakota lawyer ethically counsel, advise, provide legal services to,
or represent a marijuana cultivator, processor, or seller when the sale of marijuana is legal under
South Dakota law but illegal under federal law? - Answer: No
- Rules Implicated: 1.2
- Issue Presented: May a South Dakota lawyer ethically counsel, advise, provide legal services to,
- 2020-05: PR estate compensation does not eliminate analysis for reasonable attorney fees (Rule 1.5)
- Issues Presented: Whether South Dakota substantive law providing that a personal representative or the PR’s “agents” (which would include the PR’s lawyer) may be compensated based upon a percentage of an estate’s value eliminates any need to separately analyze whether the Rules of Professional Conduct regarding reasonableness of attorney fees permit such a fee to be assessed?
- Answer: No; although it is possible that a fee calculated in this way would satisfy the Rules of Professional Conduct, it is also possible that such a fee would be excessive.
- Rules Implicated: 1.5
- 2020-04: Maintaining Possession of Client Funds Post Representation (Rules 1.16, 1.15, and 8.4)
- Issues Presented: Whether a lawyer will violate the Rules of Professional Conduct by maintaining possession of and slowly distributing client funds to the client after representation has concluded, even at the client’s direction, when lawyer believes client may be using this process to violate the law?
- Answer: It is possible this will violate the Rules; and the lawyer should distribute the remaining funds to the Client immediately, or set a deadline for the Client to receive the funds before the lawyer will take other steps to dispose of the funds.
- Rules Implicated: 1.16, 1.15, and 8.4
- 2020-01: Determining Ownership of Funds in Lawyer's Custody (Rules 1.7, 1.15, 1.16)
- Issues Presented: How should a Lawyer resolve a dispute between a client and a third party regarding ownership of funds in the Lawyer’s custody?
- Answer: Lawyer should utilize interpleader or some other procedure to obtain a determination regarding ownership of the funds from a Court of competent jurisdiction and in any event must not resolve the issue personally.
- Rules Implicated: 1.7, 1.15 1.16.
2019
- 2019-06: Third-Party Financing Lawyer's Services (Rules 1.2, 1.4, 1.5, 1.6, 1.7, 1.9, 1.15, 1.16)
- Issue Presented: Whether a lawyer may inform a client or prospective client regarding third party financing options or otherwise identify a third party lender that might loan the client/prospective client funds to pay for the lawyer’s services?
- 2019-05: Disposition of Client Trust Account Funds (Rules 1.5, 1.6, 1.15, 1.16)
- Summary: A Lawyer may not take possession of unearned funds remaining in a Client’s trust account even if the Client has discontinued communication with and cannot be located by Lawyer after a diligent search, and even if an operative fee agreement appears to permit the lawyer to do so.
- 2019- 03: Determining representation objectives; clients with diminished capacity (Rules 1.2, 1.14)
- Summary: Lawyer appointed to represent a child in abuse and neglect proceedings does not have to follow ABA standards which conflict with South Dakota law and can try to protect the interests of a minor child inconsistent with the child’s wishes.
- 2019-02: Client with diminished capacity (Rules 1.14)
- Summary: Lawyer may not independently seek appointment of a guardian and conservator for client with diminished capacity when family have been informed of possible need and lawyer does not perceive a substantial risk to client.
- 2019-01: Fees; client property; termination of representation (Rules 1.5, 1.15, 1.16)
- Summary: Lawyer may not deposit a flat fee directly into the operating account when it is possible that the entire fee may not be earned and must refund any unearned amounts upon termination of representation
2014
- 2014-01: Trust account management; confidentiality (Rules 1.15; 1.6; 3.3; 3.4; 4.1)
- Subject: Trust account management; confidentiality
Summary: A lawyer must give all persons with a claim to funds held in trust a full accounting of those funds and their disposition; where disputed claims exist, a lawyer may disclose those claims as necessary to provide an accounting and make an appropriate distribution
- Subject: Trust account management; confidentiality
2013
- 2013-06: Trust account management; confidentiality (Rules: 1.9)
- Summary: A lawyer must give all persons with a claim to funds held in trust a full accounting of those funds and their disposition; where disputed claims exist, a lawyer may disclose those claims as necessary to provide an accounting and make an appropriate distribution
- 2013-02: Obligations to person with diminished capacity and potential conflicts (Rules 1.7, 1.9, 1.14(b), 1.18(a))
- Summary: Lawyer may take reasonably necessary action to protect Client with diminished capacity; person is not a "prospective client" if lawyer has not discussed forming client-lawyer relationship with that person.
- 2013-01: Relationship to opposing attorney (Rule 1.7)
- Summary: Attorney is not precluded from defending criminal cases in jurisdiction where prosecutor is a close relative
2012
- 2012-05: Conflict of Interest (Rules 7.1)
- Summary: Attorney's service on non-profit board for organization that provides advocates for children in abuse and neglect cases conflicts with Attorney's representation of parents and children in abuse and neglect cases
- 2012-04: Efforts necessary to correct misrepresentation by client (Rules 3.3)
- Summary: Attorney has an obligation to take reasonable efforts to remediate application for court appointed counsel known to be false.
- 2012-02: Efforts necessary to correct misrepresentation by former client (Rules 3.3, 3.4)
- Summary: Attorney has an obligation to take reasonable efforts to remediate false interrogatory answers given by client.
2011
- 2011-01: Attorney advertising and communication with potential clients (Rules 7.1, 7.2, 7.3)
- Summary: "Claim Calculator" involves improper prediction of success, prohibited fee for referral, and does not contain required elements of advertising communication.
2010
- 2010-06: Representation of home owner's associations and membership on board of directors of road district formed by home owner's association. (Rules 1.7)
- Summary: Attorney may represent two home owner's associations and newly formed road district because no present conflict of interest exists.
- 2010-04: Representation of new client in matters substantially related to prior representation of another client (Rules 1.9)
- Summary: Drafting a corrective deed for a new client is barred absent the written informed consent of the prior client.
- 2010-03: Settlement of disputed claims; fee splitting (Rules 1.2, 5.4)
- Summary: Attorney representing deceased attorney’s estate may follow personal representative’s direction to settle disputed claim alleged to arise from promise to split fees with a non‑lawyer.
- 2010-02: Conflicts of interest among legal aid attorneys and private attorneys taking legal aid referrals; screening of attorneys; duties to prospective clients (Rules 1.0, 1.1, 1.10, 1.18)
- Summary: Legal aid organization lawyers and private attorneys taking referrals are not members of the same “firm” subject to imputed conflict rules, but must be screened from adverse clients; legal aid intake workers need not document all calls seeking potential assistance.
- 2010-01: Contingent fee in contract action between unmarried domestic partners (Rules 1.5)
- Summary: Action to recover cash investment in purchase of real property from unmarried domestic partner is not subject to a prohibition against use of a contingent fee
2009
- 2009-01: Disclosure of client actions to third party. (Rules 1.2(d); 1.6; 4.1)
- Summary: Actions of client in entering contract with third party were not criminal nor fraudulent and were not material facts, thus were not exceptions to confidentiality rules which would requiring disclosure.
2007
- 2007-09: Use of a service mark on a law firm letterhead and in advertisements, and shortening of the firm name. (Rules 7.1, 7.5)
- Summary: Statements used in advertising and on firm disclosures must not mislead or raise the level of expectation in regard to the results the Lawyer can achieve.
- 2007-06: Conflict of interest among clients, limitation of representation. (Rules 1.7, 1.9)
- Summary: Attorney is precluded from representing two co-owners of a parcel of real estate against a third co-owner when the Attorney had previously represented all three clients in a matter relating to the same parcel of real estate.
- 2007-03: Disclosing confidential information to one holding a Power of Attorney for the client. (Rules 1.6; 1.14)
- Summary: A power of attorney may not be used to obtain confidential information when the client has instructed such information should not be disclosed.
2006
- 2006-01: Conflicts of Interest - Former Government Officers or Employees (Rules .11 and 1.9)
- Summary: A law firm may represent a client in a matter where a member of the firm personally and substantially participated as a public officer or employee if the former government employee is properly screened from participation in the case. The lawyer may represent the client with the informed written consent of the government agency.
2004
- 2004-06: Declining or terminating representation; client with diminished capacity. (Rules 1.16)
- Summary: A lawyer may withdraw from representing a client with Court approval. If the client suffers from diminished capacity, the lawyer may take certain steps to protect client's interests.
- 2004-05: Representation of minors in Abuse and Neglect actions, client with diminished capacity (Rules 1.2, 1.14)
- Summary: Attorney may represent the "best interests" of a minor if steps are taken to protect the client's interests.
- 2004-01: Non-lawyer Employees (Rules 5.3 ; 1 .10(c) and 1 .7)
- Summary: Competing law firms may employ the same non-lawyer.
2003
- 2003-08: Conflict of Interest (Rules 1.7)
- Summary: Lawyer may represent husband and wife with conflicting interests if Lawyer's representation will not be adversely affected thereby and if they consent to the representation.
- 2003-07: Conflict of Interest (Rules 1.7; 1.9(a); 1.10(b)(c))
- Summary: Absent consent after consultation, an attorney may not represent a client whose interest is adverse to a former client.
- 2003-06: Champerty and Maintenance (Rules 1.2, 1.16, 8.4)
- Summary: Law Firm is prohibited from entering into contractual relationship with client and third party for cash advance by third party prior to conclusion of dispute.
- 2003-03: Conflicts of Interest in Criminal Appeal (Rules 1.7, 1.16. 3.1)
- Summary: Court appointed trial counsel may continue to represent clients on appeal when ineffective assistance of counsel is asserted as an issue on appeal.
2002
- 2002-02: Formation of Attorney‐client relationship via e‐mail communication (Rules: 1.1; 1.6)
- Summary: E‐mail communication from prospective client can create attorney‐client relationship.
2001
- 2001-02: Client files (Rules 1.16)
- Summary: Upon conclusion of representation, the client is entitled to return of his/her file upon request. The lawyer has a duty to return all property and papers necessary to protect the client’s interests. What is property of the client and/or property of the lawyer is a matter of substantive law and no opinion given. See EO 96-7.
- 2001-01: Confidential communications; Duty to disclose client’s failure to comply with conditions of Suspended Imposition of Sentence (Rule 1.2(d), 1.6(a), 1.6 (b)(3), 1.16(b)(3), 2.1 and 3.3)
- Summary: Lawyer is prohibited from voluntarily disclosing to the Court a client’s failure to comply with sentencing conditions; lawyer to advise client of limitations of representation; lawyer must not make false statement to court and must disclose if necessary to avoid assisting in criminal conduct; situation may allow withdrawal.
2000
- 2000-06: Estate: Duty to disclose possible improper source of estate asset (Rules 1.2; 1.6; 1.16; 3.3)
- SUMMARY: Lawyer for an estate may have duty to withdraw or disclose improper source of real estate.
- 2000-05a: Flat Fee Agreements in light of Ethics Opinion 2000-5 (Rules 1.5, 1.16)
- SUMMARY: Fee agreements for a specific service or case are permissible so long as they allow for a review of the fee upon conclusion of the representation to ensure that the fee is reasonable and allow for a refund of any unearned fees upon the discharge of the attorney.
- 2000-05: Non-Refundable Retainer Agreements; Third Party Guarantor of Fees (Rules 1.5, 1.16; 1.8(f))
- SUMMARY: Retainer agreements for a specific service or case must allow for a refund of any unearned fees upon the discharge of the attorney. A third party guarantor of fees is permissible so long as the client gives informed consent, the lawyer’s judgment is not interfered with and client confidences are protected.
- 2000-03: Lawyer advancing money to a client; Expenses of medical treatment (Rules 1.8(e), 8.4(d))
- Summary: Rule 1.8(e) prohibits an attorney from advancing any money on behalf of a client that is not necessary to prosecute the action.
- 2000-01: Lawyer responsibility to pay for consultants hired by lawyer in representation (Rules 1.8(e), 8.4(d))
- Summary: Absent a written agreement to the contrary with the consultant, lawyer must pay for litigation services lawyer ordered on behalf of client even if the attorney/client relationship terminates.
1999
- 1999-05: Conflict of interest; Spouse of client (Rules 1.8(b), 1.9(a))
- Summary: Attorney may not represent client against client’s spouse without consent of spouse of client or matter must not be substantially related to prior representation of client if spouse is also a former client.
- 1999-02: Confidentiality; Outside Auditors of Detailed Legal Bills (Rules: 1.6, 1.8)
- Summary: Counsel needs client's informed consent to submit detailed legal bills to outside auditing companies.
- 1999-01: Conflict of interest; Government employee; Subsequent representation of mutual client (Rules: 1.7(b))
- Summary: Attorney who has moved from one agency to another may represent client of former employer if the representation will not be materially limited and the lawyer obtains informed consent.
1998
- 1998-11: Trust accounts; Unclaimed client funds (Rules 1.15)
- Summary: Unclaimed trust funds of deceased client must be maintained by lawyer until valid claim is made; court order is entered or escheat to the state.
- 1998-10: Internet Referral Service; Advertising; Fee Division; Assisting in Unauthorized Practice of Law (Rules 1.5, 5.5, 7.1, 7.2)
- Summary: South Dakota lawyer may not participate in an Internet Referral Service taking an advertising fee and a share of legal fees to refer cases to South Dakota lawyer and provide no legal services.
- 1998-09: Contact with represented persons; Municipal officials (Rules 4.2)
- Summary: Attorney may communicate with government officials on legislative matters on behalf of a client without permission of the agency's attorney.
- 1998-08: Conflict of interests; Charitable organization; Charitable gifts to client by another client (Rules 1.6, 1.7, 2.3(a), 4.3)
- Summary: Attorney providing advice to third persons on behalf of an estate planning organization client must advise the third person that he represents the organization, not the third person and that person should seek advice of their own counsel.
- 1998-07: Conflict of interests; Clients of lawyer joining firm (Rules 1.9(a)
- Summary: Whether a law firm may bring suit against the former client of a new attorney in the firm depends on if the suit is substantially related to issues in the former representation. Whether a matter is "substantially related" is a factual issue to be determined case by case.
- 1998-06: Confidential information; Wills (Rules 1.6, 1.14)
- Summary: Attorney must preserve client confidentiality of a disabled client unless disclosure is authorized by one of a limited number of exceptions.
- 1998-03: Trust account disbursements; Attorney's liens (Rules 1.15)
- Summary: Where third party has lien on settlement received on behalf of client, attorney must determine if there is "dispute" as to third party's interest in the proceeds before releasing funds to third party.
1997
- 1997-08: Conflict of interest; Office employees and law enforcement personnel (Rules 1.7(b))
- Summary: Attorney must have "reasonable belief" that her representation of client will not be adversely affected, where secretary's spouse is an adverse witness. Client must also consent after consultation.
- 1997-05: Advertisements; Letterhead; Firm name; Use of retiring firm member name (Rules 7.1; 7.5)
- Summary: Firm name may include retired member's name but if the individuals' name is listed on the letterhead, it must indicate the member is retired.
- 1997-04: Client confidences; Disclosure of confidential information. (Rules 1.2; 1.6)
- Summary: Attorney must not reveal client's confidential information unless required by the Rules or other law. In such case, attorney must advise client of the need to disclose and if client does not authorize disclosure, attorney must withdraw.
- 1997-03: Client confidences; Conflict of interest; Withdrawal as counsel. (Rules 1.3; 1.6; 1.7)
- Summary: Attorney, representing separate divorce clients, obtains information adverse to one client, which will be an issue in each client's case. Attorney must withdraw from representing both clients and refrain from disclosing the information.
1996
- 1996-11: Advertisements; Contingent fee agreements (Rules 7.2)
- Summary: When advertising contingent fees, disclosure of how fees are computed and that client will bear expenses must be specific and conspicuous.
- 1996-08: Client confidences; Files of deceased client's; Release with no probate and no administrator. (Rules 1.6)
- Summary: The attorney/client privilege continues after death and release of files is prohibited absent waiver by an approved estate representative or by final Order of a court.
- 1996-07: Ownership of client files; Copies of files; Customary practices. (Rules 1.16)
- Summary: An attorney must return those items in the file that the client gave the attorney and any items paid for by the client. Attorney's notes/work product are not included. An attorney may charge for copies, etc., if it is the firm's customary practice or by specific agreement. What is property of the client or property of the attorney is a matter of substantive law, no opinion given. See EO 95‐16.
- 1996-06: Client referrals from third parties (Rules 1.7, 1.8)
- Summary: An attorney should not accept a fee or other remuneration for referrals to non‐clients. See In the Matter of Estate of Shuldt, 428 NW2d 251 (SD 1980). See EO 93‐14.
- 1996-03: Conflict of interest; Criminal appeal (Rules 1.7(b); 1.16(c))
- Summary: An attorney may withdraw from a criminal representation when the client decides to argue on appeal that the attorney was ineffective, if the client wants him to and the attorney reasonably believes that continued representation would be adverse.
- 1996-02: Advertisements; Contingent fees and expenses; Out‐of‐state advertising (Rules 7.2)
- Summary: An attorney advertises contingent fees in yellow pages of another state. Ad does not violate South Dakota Rules of professional conduct if it complies with the state of origin's rules with regard to advertising and solicitation and the attorney has a reasonable expectation that the directory will not be disseminated in South Dakota .
1995
- 1995-16: Discharge by client; Unpaid fees; Attorney's lien on client files after discharge (Rules 1.5, 1.16)
- Summary: Attorney must provide copies of file to replacement counsel, but can keep original files for purpose of attorney's liens.
- 1995-15: Office sharing; Client Confidentiality; Sexual harassment claim; Attorney as witness (Rules 3.7)
- Summary: Attorney A who shares office space with Attorney B may not represent B in a case where an employee sues B. If A reviews the pleadings for B, A cannot reveal any information learned during the preparation of those documents without a waiver of the attorney‐client privilege. A cannot represent either B or employee if A has confidential information and may be called as a witness.
- 1995-13: Advertisements; Yellow pages; Direct mail solicitation (Rules 7.2, 7.3)
- Summary: An attorney can send copies of his advertising in the yellow pages to non‐clients with out any further information as long as the original directory advertising complies with the rules regarding advertising and direct contact.
- 1995-12: Client referral; Solicitation; Legal services plan (Rules 7.2, 7.3, 7.4)
- Summary: An attorney may not accept an offer to become a participant in a club providing legal referrals to the attorney, including an agreement that the attorney must sign regulating fees charged to club members, other referrals, acceptance of clients. EO 92‐19.
- 1995-08: Contingent fee agreements; Child support arrearages
Summary: An attorney may try to collect child support (Rules 1.5)- Summary: An attorney may try to collect child support arrearages on behalf of a client under a contingent fee agreement as long as: (1) the divorce is final, (2) the fee arrangement is in writing, (3) the client is indigent and no practical fee arrangement is practicable, (4) the attorney makes full disclosure regarding child support arrearages, and (5) the fee is reasonable and fair.
- 1995-05: Client confidences; Client's medical records; Discovery materials (Rules 1.6)
- Summary: Rules do not cover situation where Attorney A provides a client's medical records to Attorney B, and Attorney B discloses the records to other doctors.
- 1995-04: Durable power of attorney; Competency of client; Guardianship of client (Rules 1.14)
- Summary: An attorney with a durable power of attorney which allows attorney to handle the client's financial affairs may seek the appointment of a guardian or other protective action for an attorney that reasonably believes that the client cannot adequately act in her own best interest. Other protective action may mean depositing the client's valuables with the court.
- 1995-03: Attorney's fees; Collection agency; Confidentiality (Rules 1.6)
- Summary: Lawyer may not report non‐paying clients to a credit bureau. However, lawyers may use a collection agency to collect past due accounts.
- 1995-01: Conflict of Interest; Duties to Executor and Estate Beneficiaries (Rules 1.2; 1.6 and 3.3)
- Summary: Attorney hired by executor and paid by estate has obligations to executor, estate and beneficiaries.
1994